Last week, Judge Daniels granted in large part a summary judgment motion that Characters For Hire, a company that provides costumed characters for children’s events, had filed in response to trademark, unfair competition and and similar claims. According to the plaintiffs (Disney, Marvel, and Lucasfilm), Characters for Hire’s costumes, including ones named “Frozen Themed,” “Avenging Team,” and “Star Battles,” are strikingly similar to well-known characters from the plaintiffs’ Frozen, Avengers, and Star Wars franchises.
Judge Daniels rejected the plaintiffs’ claims of consumer confusion, noting that whether children believed the generic characters were the same as the more famous Disney versions was irrelevant:
Plaintiffs offer no basis in fact, law or logic to believe that the relevant market for CFH’s party and entertainment services are children; adults, not children, plan parties . . . . Here, there is no evidence of actual consumer confusion. The only anecdotal “evidence” Plaintiffs can muster are a handful of instances where CFH’s customers referred to the actual names of Plaintiffs’ characters in online reviews rather than using the names provided for such characters on CFH’s website. Yet, none of the customer reviews suggest the slightest sign of confusion . . . Plaintiffs also fail to offer statistical surveys showing any instances of consumer confusion despite CFH providing character-for-hire services using Plaintiffs’ trademarked characters since at least 2012. That Plaintiffs and Defendants have used similar marks over a substantial period of time without ever producing a single recorded instance of consumer confusion shows that there is no likelihood of consumer confusion.
Judge Daniels also found that the defendant’s alleged poor quality of performance actually worked in its favor to disprove confusion:
None of the reviews cited in the record betray any sign of consumer confusion as to the source, sponsorship, or affiliation of CHI’s products or services. Nor do they suggest that Plaintiffs’ reputations are being tainted as a result of being confused with Defendants’ allegedly inferior services. To the contrary, in light of Plaintiffs’ well established and highly regarded reputations in the entertainment industry, if Defendants’ services are in fact of a lesser quality, it is likely that ordinary consumers will assume Plaintiffs are not responsible for them.